Price, Sullivan and Leonard. The opinion of the court was delivered by Leonard, J.s.c. (temporarily assigned).
[72 NJSuper Page 208] Defendant, with leave of this court, appeals from an order of the
Superior Court, Law Division, denying his motion, made pursuant to R.R. 4:12-2(e), to dismiss plaintiff's complaint for the reason that same "fails to set forth a cause of action upon which relief can be granted."
Defendant argues as grounds for reversal that the trial court erred in that (1) it treated his motion as one for summary judgment and denied same because questions of fact had been raised; (2) it failed to determine whether the complaint stated a cause of action, and (3) it "should" have dismissed the complaint on said ground.
The pertinent parts of the complaint "In Lieu of Prerogative Writ" follow:
"Plaintiff * * * having its principal office at * * * Woodbridge Township * * * New Jersey, complaining says:
1. At present and at all times referred to herein, plaintiff * * * is and was * * * in the business of operating 'wreckers' or tow trucks, and the defendant * * * is and was a duly elected Committeeman of the Township * * * and Police Commissioner of the Township * * *.
2. On November 3, 1941, the Township Committee * * * passed an ordinance concerning the regulation of 'wreckers' and the licensing of the owners thereof, * * * which provides, among other matters for licensing of owners of wreckers and the revocation or suspension of such licenses * * * after a hearing upon the nature and circumstances of the violation * * *. This ordinance is in force, at present and was in effect at all times herein.
3. In April, 1960, defendant * * * as Police Commissioner * * * established and published a Call List of eligible garages to be used when wrecker services were required or requested through the Police Department. A copy of the announcement establishing the Call List and the list of requirements and regulations is attached.
4. Under the April, 1960, Call List, the Defendant * * * drew up and issued to the Police Department a list of wrecker owners, broken down into two geographical sections of Woodbridge * * * and further broken down into rotating lists of wrecker owners in each section. * * *
5. On the said Call List issued by the defendant on May 7, 1961, the plaintiff is not listed for a call day from May 8, 1961 to June 7, 1961, and thereafter is listed every six days until the end of the Call List on June 30, 1961. A covering letter sent with the May 8th -- * * * Call List, * * * and signed by the defendant, addressed to Township Police Chief * * * and Participating Garages * * * announced the suspension from the Call List of the plaintiff
for violation of the Call List, safety requirements and motor vehicle laws on April 4, ...